The UK Supreme Court has delivered a ruling
that ensures that intelligence agency surveillance action can
be challenged in the courts, and is subject to the rule of
law.

The status quo for western democracies is the trias
politica model -- the separation of national governance into
three branches: executive, legislative and judiciary. This
model is used by the United States, the European Union, and the
United Kingdom. In all three cases, there is a natural impetus
for the executive to attempt to assume all power.

In recent months, the assumption of overriding
authority by the UK executive (basically, the Prime Minister,
but supported by Cabinet member appointees) has been challenged
by the legislature over Brexit -- Parliament has simply refused
to accept the wishes of the Prime Minister. This is almost
revolutionary.

Today, the UK executive has suffered another
set-back -- this time from the judiciary. Over the last few
years, the UK government has implemented 'national security'
laws that many other countries might consider draconian. It has
been able to do this because, traditionally, the legislature
rubber-stamps the legislation presented by the
executive.

Among these laws is the Regulation of Investigatory
Powers Act ("RIPA") 2000. Where RIPA 2000 differs from other
legislation is that its enforcement has no judicial oversight.
The government established a separate independent oversight
organization, the Investigatory Powers Tribunal (IPT). This
organization is not part of the judiciary and, according to the
law, its decisions could not be challenged within the courts.
The law states (section 67.8), "...decisions of the Tribunal
(including decisions as to whether they have jurisdiction)
shall not be subject to appeal or be liable to be questioned in
any court."

It became clear after Snowden's leaks in 2013 that
certain intelligence agencies, including GCHQ, were involved in
mass surveillance exercises. The intelligence agencies have
always insisted that they only work within their national laws.
In the UK, that law is RIPA 2000. Privacy International
challenged the intelligence agencies' mass 'hacking' practices
with the IPT.

In 2016, the UK government said that a single
general warrant issued by a government Minister would allow the
intelligence agencies to surveil or hack any computer within an
entire city. If that city was defined as Greater London it
would cover nearly 9 million people on one warrant without
judicial oversight. This wouldn't require reasonable grounds
for suspicion. The IPT agreed with the government, and declared
that the intelligence agencies' behavior had been
legal.

Privacy International (PI) challenged this
interpretation in the High Court. The government argued that
even if the IPT got it completely wrong, or acted unfairly, the
courts had no power to intervene and correct any mistake. And
in 2017, the High Court agreed -- but PI took it to the Supreme
Court. This not a question over whether the IPT was right or
wrong, but whether it could be challenged in the court. It is
an issue that strikes at the very heart of trias politica --
whether one branch of the governance mechanism can exclude the
involvement of another from the process of
governance.

Today the Supreme Court has ruled, and the answer
is No -- the executive cannot exclude the judiciary from
interpreting the laws passed by the legislature. In the
judgment (), Lord Carnwath wrote, "The legal issue
decided by the IPT is not only one of general public
importance, but also has possible implications for legal rights
and remedies going beyond the scope of the IPT's remit.
Consistent application of the rule of law requires such an
issue to be susceptible in appropriate cases to review by
ordinary courts."

He added, "...the judicial review jurisdiction of
the High Court is not excluded by section 67(8). Although that
is the limit of the issue before the court, it will be clear
from what I have said about the significance of the substantive
legal issue, that this is a case where, if judicial review is
available, permission should be granted."

Although this ruling stems from a PI challenge to
the legality of certain intelligence agency surveillance
actions, it is not in any way a ruling on the legality or lack
of it. It is, in fact, of much greater constitutional import --
it asserts the ultimate authority of the judiciary in
interpreting the law. It isn't the end of PI's action against
GCHQ -- it is more like the beginning.

"Today's ruling," said Caroline Wilson Palow, PI's
general counsel, "paves the way for Privacy International's
challenge to the UK Government's use of bulk computer hacking
warrants. Our challenge has been delayed for years by the
Government's persistent attempt to protect the IPT's decisions
from scrutiny. We are heartened that our case will now go
forward."

Simon Creighton, of Bhatt Murphy Solicitors, added,
"Privacy International's tenacity in pursuing this case has
provided an important check on the argument that security
concerns should be allowed to override the rule of law.
Secretive national security tribunals are no exception. The
Supreme Court was concerned that no tribunal, however eminent
its judges, should be able to develop its own "local law".
Today's decision welcomes the IPT back from its legal island
into the mainstream of British law."

It means, whether intelligence agencies' historical
mass surveillance is ultimately declared legal or illegal,
future surveillance in the UK can now be exposed to the
judicial spotlight.

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Kevin Townsend is a Senior Contributor at SecurityWeek.
He has been writing about high tech issues since before the
birth of Microsoft. For the last 15 years he has specialized
in information security; and has had many thousands of
articles published in dozens of different magazines – from
The Times and the Financial Times to current and long-gone
computer magazines.

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